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Boards should be aware of the laws about granting access for repairs.
AUTHORDennis H. Greenstein, Partner, Seyfarth Shaw
PAGE #p. 48
Gaining or granting access for repairs can benefit both sides if neighbors discuss their requirements rationally.
Co-ops and condos are doing a lot of façade work as a result of Local Law 11. That frequently entails erecting scaffolding and other equipment, and having to gain access to neighboring buildings. There is also a great deal of new construction, where the developer needs access to neighboring buildings. Although people have the right to keep others from trespassing on their property, there are many laws that require you to grant access in certain circumstances.
What initially happens is that the managing agent will be contacted by the owner of a neighboring building, saying, “We just need to go on your roof for a few days or longer. We’re doing some work.” That should be a big red flag. What the manager or board member should do is meet with the board, the building’s architect and attorney to discuss the issues before offering any access.
Your professionals should gather information about what’s being done next door. Are we talking about access for a short period of time, or a year or two? What work do they intend to do? What do they intend to put on your building? How will it affect the property? How will it affect your residents? The situation may also be reversed, especially when you are doing Local Law 11 work. Buildings taller than six stories must be inspected every five years to make sure nothing is falling down. Sometimes you may need access to the building next door, or your neighbor needs to get on your building to perform these inspections or to perform repair work. Under statutory law, you need to protect their property from harm and they need to protect yours.
It’s best to negotiate an agreement with your neighbor setting out the “rules” regarding the access. If you are accused of not negotiating in good faith to grant access, or you believe the other side is not operating in good faith, the party needing access can apply under the Real Property Actions and Proceeding Law, and you’ll be in front of the judge in about a month. The judge will then determine the “rules” regarding the access. There are economic and legal considerations here. In order to protect your property, particularly where excavation is involved, you may have to pay an architect to do a pre-construction survey.
The architect will photograph or videotape the building so that nothing is in dispute later on in terms of the condition of either property. You want to know the details of the project and how it will affect you. Will there be sheds on the sidewalk that are going to affect the building entrance? Are there people in your building who have terraces that may have to be covered? What insurance do your neighboring property and your building have? You should sit down and carefully discuss this as a team – the board, the architect, the managing agent, the insurance broker, and the attorney.
Ideally, both sides are able to reach a reasonable compromise. What if you don’t grant access? If you don’t, you usually end up in front of a judge, who is likely to grant access, possibly with less favorable terms than the other side was willing to agree to in negotiations. You’ll have to defend your position in court, and it’s going to cost you legal fees. Our experience is that you’re better off reaching an agreement with the neighboring party.
The essence of this lesson is that gaining or granting access can work out well for both sides if neighbors are willing to discuss their requirements. You may not get everything you want, but I think reasonable people can agree to reasonable terms. Get your team together early. That’s critical. In the end, it’s all about time, money, and setting aside egos. Our job and the managing agent’s job is to help you reach a reasonable compromise. In order to do this, though, boards really have to be involved in the decision-making process.